Scope and Development of Medical Law in India

Just like the field of medicine, legislations governing medicine and healthcare in India are exceedingly vast. The legal framework established to deal with issues involving medical treatment, public health, and professional ethics is not singular in nature. It is dealt with by multiple levels of legislation ranging from appointment of suitable law enforcing commissions to well-crafted series of laws in an attempt to suit the interests of both, doctors and patients.

While healthcare may seem to be a private affair for many due to one on one interactions between doctor and patient and the uniqueness of issues varying from person to person, however, it must be noted that it is, in fact, a field which has a wide-scale socio-economic impact on the public. Consultations and queries tend to influence a large section of the society as they play a crucial role in discovery and invention in the field of medicine. In addition to that, they can also give rise to certain grievances or complaints which can help transform the administration of hospitals, bring about a change in the public healthcare system in the form of guidelines and practices involved to aid better treatment and patient satisfaction and also generate awareness among people regarding the options available for the treatment of ailments and reasonable expectations regarding affordability and procedure followed during a certain procedure.

The makers of the Indian Constitution understood the importance of public healthcare and realised that mere treatment of ailments was not enough. They focused on the development of an extensive public healthcare system to promote wellness among individuals by launching many drives and campaigns in the post-independence era. The medical profession was viewed as a noble, public-oriented profession since the very beginning and works on the principle of multiple observations, trial and error, research studies, and practice.

To maintain a proper eye on developments healthcare in India is majorly a state affair in addition to multiple national-level initiatives and legislations formulate by the central government from time to time. Precisely, healthcare in India features a universal healthcare system that is run by individual states and union territories. This is ensured by the constitution through the provision of Directive Principles of State Policies. The provision is sprinkled across the directives in the form of ‘promotion of the welfare of people’[1], ‘protection of the health of workers’[2], ‘protection of sick and disabled’[3] ‘health protection for infant and mother by maternity benefits’[4] ‘state responsibility to increase levels of nutrition and standard of living of its people’[5].

These directives that were provided hold a constitutional mandate are to be followed by the state by formulating developmental goals and policies. These directives are duties, however, are not legally enforceable as fundamental rights are because they were formulated as aspirational policies for the states to consider during the era of independence and partition. It was a period of severe economic crunches and the government aimed to stabilise the economy and allow indigenous industries to establish and boost the economy to provide a livelihood to multiple people who had lost their income and savings by creating job opportunities. These directives were taken into consideration but the initiatives were not very efficient due to individual goals of people and lack of awareness which was looked after over time but there is still a long way to go seeing the current scenario of nutrition and wellness of people, especially, in the lower strata of the society.

Although, theoretically, these directives are not legally enforceable, however, the judiciary, especially the Supreme Court of India, has interpreted in many of its rulings that right to health as mentioned in the Directive Principles of State Policies is in consonance with Right to Life, a fundamental right. In Paschim Banga Khet Mazdoor Samiti vs, State of West Bengal[6], the supreme court developed the right to emergency treatment and went on to state that the failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in the violation of a person’s right to life guaranteed under Article 21.

Adequate medical attention and timely medical treatment are necessary for good health and avoiding them in case of severe injury or disease can prove to be fatal. Therefore, the Supreme Court’s interpretation of emergency treatment and the right to life proves to be beneficial in the development of laws associated with practice of medicine. Several interpretations and explanations have been made through many other cases declaring the importance of the right to health and the interconnectedness with the right to life bringing into limelight multiple malpractices of hospitals, private and public alike, and medical professionals.

While attempts have been made to improve the general wellness of people in the country which is only possible with better healthcare, however, many doctors and medical professionals feel that the laws governing healthcare in India are not as efficient as they should be. Approximately, eight out of ten doctors feel that the laws are outdated and cause a significant amount of inconvenience to both doctors and patients.[7] The dissatisfaction is mostly due to the fact that there is no specific act dealing with the governance of hospitals and the healthcare industry in general. Doctors and administrators associated with government and military hospitals have pointed out the inconvenience caused by the requirement of renewing their licenses every year. This seems like a tedious process as doctors are already overburdened with long working hours and innumerable patients.

Every aspect of the governance of hospitals and doctors is governed by separate acts, some of which are efficient but a majority of them increase the amount of work to establish and run a hospital. Moreover, the multiplicity of laws makes it difficult for victims of medical malpractice to seek justice as many are unaware of the provisions, and combing through so many acts and finding a suitable provision to seek justice can become extremely daunting. Seeking the help of legal professionals can also cost a fortune since this field is still developing and the enormous task of going in between the lines of multiple unrelated acts raises the service charge making it difficult for people to approach the court for seeking justice.

To supplement the premise, Indian Medical Council Act, 1956[8] provides for the establishment of medical colleges, licensing doctors, the composition of the council, and the extent of liability of a doctor, mainly in the form of a list of practices that a certified doctor can and cannot perform. The list of practices is the rights given to a certified doctor such as the right to enrol in the state medical council following the provisions of the act and the right to issue a medical certificate in the name of patients that are taken care of.[9] The Act is insufficient as other provisions related to criminal liability and conduct of a doctor are mentioned in the Indian Medical Council (Professional conduct, etiquette, and ethics) Regulation, 2002. This is one of many examples that shows how details are scattered over a series of legislations.

There are quite a few areas in the field of law which are very vast. However, the provisions are not scattered over a series of legislations. Criminal law is vast but it is dealt with by ‘Indian Penal Code’[10] that describes the offence and punishment to be given to the criminal so declared following the due process of law established by ‘CrPC’[11]. Criminal law has multiple facets too but the task of combing through multiple acts and finding the suitable provision for establishing liability and seeking apt justice in cases of healthcare increases the length of procedures and difficulties faced by the seekers of justice. Furthermore, to understand the situation better one can consider the act governing the etiquette and conduct of medical professionals.

There about ten different acts defining the code of conduct for doctors, dentists, nurses, pharmacists, and other medical professionals.[12]Again, The Indian Medical Council Act, as mentioned previously, provides for the constitution of the Medical Council of India, regulates standards of medical education, permission to start colleges, courses or increase the number of seats, registration of doctors, and standards of professional conduct of medical practitioners. Similarly, the Indian Medical Council (Professional conduct, etiquette, and ethics) Regulation 2002 regulates the conduct of these medical practitioners and the right to be heard in person or through advocate in case a legal issue arises. This is one example that points out the repetition and overstatement of the same provision which can lead to confusion and inefficiency.

The Acts governing the management of patients are also outdated in some sense. The Epidemic Disease Act, 1897 that has been enforced in the current, testing times of coronavirus has not been amended since. Although it seems efficient in terms of centre taking over some of the tasks of monitoring, yet, it has been more than a century, and medicine and technology have made some advances. It appears to be a sort of empowering legislation that empowers the governments to pass any regulation which it believes to be necessary pertaining to the condition. This act only deals with the administrative area of governance and not the scientific measures to be taken in case of an epidemic.[13] This is not only outdated but also absurd in the sense that it increases inefficiency because the government will have to take new precautions all together to control the spread of epidemic instead of following some standard safety precautions to contain the spread seen in the current scenario of COVID-19.

With all that being said, certain positive provisions are also present which help in better administration of hospitals such the  Atomic Energy (Safe disposal of radioactive waste) rules of 1987 promulgated by the Indian Central Government Atomic Energy Act, 1962 which helped to achieve a larger objective of proper waste management of radioactive substances found in the hospital premises.[14] This has ensured that radioactive waste does not emit radiations beyond the prescribed safety limits reducing the short term and long-term effects of ionizing radiation on humans which minimises the risk of certain cancers, a mutation in genes, and aplastic anaemia. It is a positive step in the direction of environmental protection and also protection of people mentioned in the Directive Principles of State Policy.

Furthermore, criminal liability imposed on doctors also functions differently while they are in the process of performing a medical procedure. This is because it allows a doctor to cause injury to the patient to prevent greater harm. The criminal law supports a doctor with three defences- informed consent, necessity, and good faith. This also clarifies the query regarding medical law and ethics. Medicine gives high regard to ethics. Law and ethics have the same centre i.e. order and welfare of human beings in society. However, certain violations of ethics may not be violations of law, but all violations of law are violations of ethics as well and this was understood by both lawmakers and medical professionals and steps have been taken to incorporate law in the field of medicine efficiently by understanding the profession and requirements and the question of ethics that is posed in situations of emergency.

The field of medicine is a noble profession and law is imposed to ensure that there is order and respect for both, right of patients and professionals alike. However, it must be understood that just as every human body has slight variations, the law also needs to mould itself as per the needs of the field by understanding the technicalities and requirements. The Indian healthcare industry has come a long way by fighting various diseases such as polio and curbing the spread of HIV/ AIDS. However, some gaps still exist that cause hindrance in providing necessary treatment and apt justice delivery, all of which can be filled with better legislations that are targeted towards the development and simplicity of procedures and awareness among people regarding their rights as patients and the services they can expect.


[1] The Constitution of India, art. 38

[2] The Constitution of India, art. 39(e)

[3] The Constitution of India, art. 41

[4] The Constitution of India, art. 42

[5] The Constitution of India, art. 47

[6] Paschim Banga Khet Mazdoor Samity vs State of West Bengal 1996 SCC (4) 37

[7] Singh MM, Garg US, Arora P, “Laws Applicable to Medical Practice and Hospitals in India” 1 International Journal of Research Foundation of Hospitals and Healthcare Administration 32 (2013)

[8] The Indian Medical Council Act, 1956 (Act 102 of 1956)

[9] The Indian Medical Council Act, 1956 (Act 102 of 1956) s. 15

[10] The Indian Penal Code,1860 (Act 45 of 1860)

[11] The Code of Criminal Procedure, 1974 (Act 2 of 1974)

[12] Singh MM, Garg US, Arora P, “Laws Applicable to Medical Practice and Hospitals in India” 1 International Journal of Research Foundation of Hospitals and Healthcare Administration 32 (2013)

[13] Epidemic Disease Act and COVID-19, India, available at https://www.lexology.com/library/detail.aspx?g=11baf77f-1104-4525-afd7-2487b1240a6c (last visited on June 15, 2020)

[14] Radioactive Waste Management in Hospitals, India, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3068798/ (last visited on June 14, 2020)

Anvita Priyadarshi from Symbiosis Law School, Noida

“I look forward to learn and discover the field of law.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: